Citation Nr: 1147026
Decision Date: 12/27/11 Archive Date: 01/09/12
DOCKET NO. 09-23 255A ) DATE
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On appeal from the
Department of Veterans Affairs Medical Center in Memphis, Tennessee
THE ISSUE
Entitlement to reimbursement of medical expenses by the Department of Veterans Affairs (VA) for the cost of non-VA medical treatment at a private medical facility from May 15, 2009, to May 16, 2009.
REPRESENTATION
Appellant represented by: Mississippi Veterans Affairs Commission
ATTORNEY FOR THE BOARD
J. D. Deane, Counsel
INTRODUCTION
The Veteran served on active duty from January 1957 to January 1959.
This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 decisions of the Memphis, Tennessee, VA Medical Center (VAMC), which denied reimbursement of the Veteran's medical expenses incurred at North Mississippi Medical Center from May 15, 2009, to May 16, 2009.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
The Veteran is seeking payment or reimbursement of private medical care expenses incurred from May 15, 2009, to May 16, 2009, at North Mississippi Medical Center.
The Veteran's claim for payment or reimbursement was denied in June 2009 by the VAMC for failure to meet the criteria under the Veterans Millennium Healthcare and Benefits Act. 38 U.S.C.A. § 1725 (West 2002 & Supp. 2011). In a July 2009 statement of the case, the VAMC cited the reason for its decision as the Veteran's receipt of Medicare part A.
On February 1, 2010, shortly before the Veteran's appeal was certified and transferred to the Board later that month, and clearly after the AOJ last considered the claim on the merits-the President signed into law the Veterans' Emergency Care Fairness Act of 2009, Pub. L. 111-137, 123 Stat. 3495 (2010). The new law removes and amends provisions in the prior version of 38 U.S.C.A. § 1725 that prohibited payment or reimbursement of emergency medical expenses on behalf of veterans who had insurance, and allows for payment or reimbursement of expenses incurred before the date of the law's enactment under appropriate circumstances. Id. These provisions appear to have some potential retroactive application to claims filed before that date. Id.
The AOJ (in this case the VAMC) has not yet considered the claim on appeal in the context of the new law. Nor has the Veteran had an opportunity to prosecute the claim in that context. Accordingly, in order to ensure the Veteran full due process of law, and to avoid the possibility of prejudice, the Board will return the case to the AOJ for further development and readjudication. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 393 (1993).
Further, in a June 2009 statement, the Veteran noted that he had received VA treatment at the Community Based Outpatient Clinic (CBOC) in Smithville, Mississippi, on May 14, 2009, and was then was admitted to the hospital the same day. The Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The AMC should obtain and associate with the claims file all outstanding VA records.
Finally, the Board notes that the claims file reflects that the Veteran has been represented by the Mississippi State Veterans Affairs Commission (as reflected in the April 1966 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative in the file). A review of the claim file indicates that while there is a valid VA Form 21-22 in favor of that organization, it has not participated in this Veteran's current appeal. Clarification of representation is needed from the Veteran.
Accordingly, the case is REMANDED for the following actions:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). Expedited handling is requested.)
1. Contact the Veteran to ascertain his intentions regarding representation. He should be advised that there is a current VA Form 21-22 in favor of Mississippi State Veterans Affairs Commission in the claim file.
2. The VAMC should send a VCAA notice letter to the Veteran informing him of the information and evidence generally required to substantiate a claim for payment or reimbursement of medical expenses under the amended 38 U.S.C.A. § 1725.
3. Obtain VA clinical records from the Smithville CBOC dating from February 2009 to June 2009 and associate them with the Combined Health Record file.
4. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed with consideration of all applicable laws and regulations--specifically to include amended provisions of 38 U.S.C.A. § 1725 and any regulations promulgated pursuant thereto to include any retroactive application that may apply. If the benefit sought on appeal remains denied, the Veteran (and his appointed representative) should be furnished an appropriate supplemental statement of the case (SSOC) and be afforded the opportunity to respond. The SSOC should contain, among other things, a citation to, and summary of, the current versions of 38 U.S.C.A. § 1725 and 38 C.F.R. §§ 17.1001, 17.1002, 17.1003, and 17.1005. Thereafter, the claims file and Combined Health Record should be returned to the Board for appellate review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011).
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MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2011).